COMMONWEALTH PENNSYLVANIA v. ROBERT RONALD SIMON (01/05/81)

filed: January 5, 1981.

COMMONWEALTH OF PENNSYLVANIA,v.ROBERT RONALD SIMON, APPELLANT

No. 319 October Term, 1979 Appeal from the Judgment of Sentence of the Court Common Pleas of Northumberland County denying defendant's Motion For a New Trial and/or Arrest of Judgment at Nos. 266, 267 of 1975.

Appellant was found guilty of robbery by a jury and, following the dismissal of post-trial motions and imposition of sentence, now appeals. He presents but one issue to us, that the lower court erred in denying his motion to dismiss filed pursuant to Pa.R.Crim.P. 1100(f). Appellant argues that the procedural aspects of his case mandate a dismissal of the charges pursuant to Rule 1100. In order to analyze

[ 283 Pa. Super. Page 205]

appellant's contentions, we must briefly recite the underlying procedural history.

The complaint against appellant was filed May 19, 1975. Therefore, according to Pa.R.Crim.P. 1100(a)(2),*fn1 the trial should have commenced no latter than November 16, 1975.*fn2 The case was initially called for trial on September 18, 1975, but the appellant timely requested a continuance.

The case was continued until November 18, 1975, when it was next listed for trial. However, when appellant's case was called for trial on this date, it was discovered that he was on trial in another county. That trial lasted through November 20, 1975.

As a result of appellant's requested continuance, thirty days must be excluded from the run date.*fn3 Moreover, for the period during which appellant was on trial elsewhere, he must be deemed unavailable in accord with Pa.R.Crim.P. 1100(d), and comments thereto. That time period must likewise be excluded from the period in which the Commonwealth is required to commence trial. See Commonwealth v. Zack, 238 Pa. Super. 210, 357 A.2d 652 (1976), Commonwealth v. Clark, 256 Pa. Super. 456, 390 A.2d 192 (1978). Herein, the

[ 283 Pa. Super. Page 206]

exact number of days that appellant was under compulsory process elsewhere is unclear, but it is agreed that the longest time period he could have been deemed unavailable is seven days. Therefore, by excluding ...

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